Criminal
Jul. 19, 2002
Jurist's Inscrutable Arithmetic to Increase Sentences Doesn't Pass Muster
Column by Garry Abrams - While somewhere there may live an alchemist who can transform 71 grams of meth into 151 grams of meth, a federal district judge can't. That is the scientific opinion of the 9th U.S. Circuit Court of Appeals, which last week vacated and remanded for resentencing the cases of four Mexican Mafia members who had pleaded guilty to drug conspiracy charges under the Racketeer Influenced and Corrupt Organizations Act.
While somewhere there may live an alchemist who can transform 71 grams of meth into 151 grams of meth, a federal district judge can't.
That is the scientific opinion of the 9th U.S. Circuit Court of Appeals, which last week vacated and remanded for resentencing the cases of four Mexican Mafia members who had pleaded guilty to drug conspiracy charges under the Racketeer Influenced and Corrupt Organizations Act. Although the four were low-level members of the Mexican Mafia, their prosecution was part of the federal government's concerted push against the gang over the last several years.
And that's right, the four pleaded guilty - and the justices still felt that the sentencing was hinky. In other words, it's the sort of juicy ruling that makes my nose twitch and my eyes gleam with journalistic delight, sort of like a beagle on the trail of a luscious rabbit.
In a memorandum opinion, Justices Stephen S. Trott, Sidney R. Thomas and Kim M. Wardlaw unanimously found that U.S. District Judge A. Howard Matz of Los Angeles had relied on an inscrutable arithmetic of drug quantities to dramatically increase the sentences of the four.
According to case documents, Matz was dissatisfied with the prison terms called for under the plea deal, which did not specify the amount of drugs involved, even though the case was all about drugs. Based on the no-specific-drug-amount aspect of the deal, the U.S. Probation Department initially had recommended relatively low sentences in the range of 41 to 51 months.
As a result of his dissatisfaction, Matz ordered a hearing "to determine drug quantity." And as a result of the hearing, the defendants found themselves liable for drug amounts that called for stiff sentences under federal guidelines. [Anthony Pacheco, who spent 51/2 years as a federal prosecutor and now is a senior counsel at Proskauer Rose, told me that every plea deal contains the reservation that the court may not accept the deal. However, Pacheco said the circumstances surrounding this case and the subsequent ruling by the 9th Circuit appear to be unusual.]
For instance, defendant Michael "Bad Boy" Vasquez found his sentencing range shoot up from 41 to 51 months to 168 to 210 months, a more than quadruple increase, according to the appeal filed by Vasquez' attorney Errol Stambler.
In that appeal, Stambler fumed that the District Court had arrived at drug amounts "from no known factual basis."
Stambler also charged that the "essential problem" with the drug quantity hearing was that it "did not present any evidence [creditable or not] to support the finding of the court."
Stambler was particularly upset that his client had been sentenced "to over 10 years in prison rather than the original recommendation from the probation office of 40 months."
A key objection of the defendants centered on their being held liable for drug amounts supposedly dealt by Jesse Detevis, a Mexican Mafia member who testified against the four.
Matz held that "Detevis surely dealt in at least 500 grams of crack cocaine and 500 grams of meth," the appellate decision states.
In his appeal, Stambler archly commented that, "[f]or the court to state 'Surely Dealt', inures a language that has some doubt within itself."
The appellate justices also pronounced themselves mystified by Matz's math.
In their decision, the justices observed that, while the case record indicated that defendant Arturo "Snoopy" Campos "dealt roughly 71 grams of meth, we cannot determine how the district court settled on 151 grams."
The decision added, "Our ability to review a defendant's drug sentence depends on the district court's clearly setting forth its method of calculation. We cannot discern any method in the record before us."
The 9th Circuit also chided prosecutors for muddying the case's waters with speculative math.
"The government fails to clarify matters," the justices wrote. "Conceding in its briefs that Detevis never testified specifically about the amount of drugs he distributed, the government gamely tries to show that a preponderance of the evidence demonstrated the 500 grams of meth and 500 grams of crack cocaine attributed to him.
The court also dismissed prosecution assertions that Detevis' testimony about his own drug dealing before the alleged conspiracy involving the four defendants constituted evidence of the scale of Detevis' drug-dealing while the defendants were involved in the conspiracy.
"We disagree," the justices wrote, using the two most dreaded words an appellate court can put on paper.
All may not be lost in this case. The appellate decision states that at resentencing prosecutors need only to demonstrate drug amounts attributable to each defendant by a preponderance of evidence, not clear and convincing evidence.
But Stambler said he's fairly confident that the four, who have been in custody since early 1999, may be released from prison soon because they have done their time, at least according to the original plea agreement.
Stambler also told me that, from the beginning, he knew the lack of drug quantities, in both the indictment and the plea deal, might create problems for the prosecution.
"I knew what was happening, but I wasn't about to inform the government," he said.
You are now free to laugh or cry.
Garry Abrams
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